Is being ‘Scottish’ a matter of birth, descent or residence?

If Scotland votes yes next year, then the Scots will have to decide who
they are - who gets to be a Scottish citizen? And can they still be a
British citizen too? And if so, does that mean London gets a say? Jo
Shaw explains...

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Who would get a Scottish passport?/ http://blog.widmann.org.uk

Defining
citizenship status and allocating citizenship rights would be an
independent Scotland’s ‘Who Do We Think We Are?’ moment, giving
concrete form to the tricky question of ‘who are the Scots?’. It
would be one of the main prerogatives of a newly sovereign Scottish
state to determine who are its citizens. Yet the questions of
citizenship status and citizenship rights have received much less
attention than many of the other issues which the prospect of
independence raises, such as monetary matters and Scotland’s
economic prospects in a globalised world, defence and security, and
pensions and the welfare state.

It
has often been suggested that residence will be the defining
qualification for those who will be the new Scottish citizens. But
does that mean only resident UK citizens? Or what about those from
other countries who are resident in Scotland, or were even born here
but haven’t acquired UK citizenship? There are nearly 300,000
people in this group. And then there is the large group of people
born in Scotland who are no longer resident here. This group is
perhaps as large as one million people, and that is a sizeable figure
of potential so-called external citizens, when it is set against
Scotland’s current population of about 5.3m.

New
states struggle with the challenge of putting the boundaries of
citizenship in the right place. They want to balance territorial
inclusion (i.e. the residence imperative) and ethnocultural inclusion
(i.e. the imperative to include those who feel themselves to be
Scottish), trying to find an outcome which is generally regarded as
legitimate by those who are affected by the decision. Citizenship
status will need to be settled quickly after any ‘yes’ vote, and
before independence, not least because it will be an important
stepping-stone to ascertaining who can vote in the first Scottish
general election. But experience in other new states in Europe, such
as those which were created out of the dissolution of Yugoslavia, has
shown that internal debates over who should be a citizen and what
rights they should have are unlikely to disappear after independence.
These issues remain heavily contested. Political parties are lobbied
by those who feel excluded because they are denied citizenship
because their connection to the country isn’t thought to be close
enough. Electoral bargains are made. Rules are tinkered with.
Sometimes the whole concept of who are the citizens is overturned by
later action.

Scottish
citizenship isn’t only important for those who will become citizens
at the moment of independence. Future generations will be concerned
about whether and how they can become Scottish, by birth or by
residence. They will want to know about Scotland’s naturalisation
processes, for example, and Scotland must decide whether it wants to
take a different path to the UK, which has moved towards imposing
quite high fees and conditions on those who want to become British.
Scotland’s Parliament might also choose to deny its Ministers the
rather broad public interest-based powers to deprive citizens of
their citizenship which exist nowadays in the UK, and which are being
increasingly used rather like a form of modern banishment.

One
of the most important hallmarks of citizenship is the right to vote.
It is given to citizens, but not always only to citizens, and not
always to all citizens. For example, those who are too young, or who
are not resident in the country are often excluded. The question of
‘who decides who are the citizens’ shows us that citizenship and
voting rights can end up in a vicious circle. The people who will
decide the Scottish referendum on independence in September 2014 are
the voting residents, the same people who can elect the Scottish
Parliament (plus, of course, the 16 and 17 year olds included as a
result of a historic decision to lower the voting age). This
electorate includes Irish, Commonwealth and EU citizens, but excludes
anyone with UK citizenship who is not resident here on polling day.
But that doesn’t settle the question of who votes in future general
elections, because the constitutional platform which will be given
the role of deciding such questions after a ‘yes’ vote might end
up limiting the right to vote in Scottish elections only to those who
take up Scottish citizenship. Or it might include also those people
who keep British citizenship, or citizenship of the rest of the UK
(rUK) as we might call it, and who decline to take up Scottish
citizenship or at least to exercise a Scottish citizenship that will
be conferred on them by the law. Or it might decide to include
Commonwealth, but not EU citizens.

And
the electoral roll might also include others who cannot vote in the
referendum, such as citizens who have recently left Scotland. They
could be given an external vote, perhaps for a limited time,
mirroring the arrangements in the UK where expatriates can vote for
up to fifteen years after leaving, in the last place where they were
registered.

How
these issues pan out will depend not only on the decision of the
Scottish parliament or constitutional authorities on who can become a
Scottish citizen, and on whether it is acceptable from Scotland’s
perspective for people to hold more than one citizenship, but also on
decisions taken in London. For it is possible that the rUK may try to
say – once Scotland has departed from the Union – that because
Scottish citizenship is now open to the residents north of the
border, that is what they must be. They cannot also, or instead, be
British. This approach is not what the Scottish Government wants. It
wants to see an open and inclusive approach tolerating widespread
dual citizenship. It may not take a proactive approach to recruiting
citizens, preferring a laissez
faire approach which
lets people gradually choose to act as Scottish citizens, once their
passports run out and they realise that a Scottish one is cheaper.
The Government also points to examples such as the UK and Ireland,
where there is quite substantial overlap of citizenship, especially
because of the special arrangements in Northern Ireland since the
Good Friday Agreement. But even so, given the numbers involved, what
the Scottish Government seems to envisage for Scotland seems to go
beyond even this. Earlier in 2013 Home Secretary Theresa May reminded
nationalist politicians that British citizenship is decided in
London, not in Edinburgh.

And
it is this dispute between Edinburgh and London which shows us how
hard it is to fit citizenship into the standard story of independence
as it is currently told. The Scottish Government’s take on the
journey towards independence and life after independence is one of
persuading voters that they can enjoy an ideal of ‘soft secession’.
The residents of Scotland – whether they vote yes or no as
individuals – can keep the Queen, the pound, and now – it would
seem – their existing citizenship, whilst also gaining something
new. This is probably what is meant by ‘shared citizenship’, an
idea that the Scottish Government has mentioned on several occasions.
But will the sharing be a two-way thing? The point of Theresa May’s
intervention on dual citizenship was to suggest the opposite. No, she
is suggesting, citizenship is hard-edged, a matter of sovereignty –
indeed ‘our’ sovereignty and not yours – and not a matter where
secession can be treated as a ‘soft’ issue. You are in, or you
are out. It was intended, of course, as a warning to wavering voters,
and as an attempt to polarise the debate by reference to promised
conflicts.

There
are pitfalls with all the possible approaches to new state
citizenship which Scotland may take. More inclusive approaches risk
creating uncertainty about who can vote in which elections, and could
carve out large populations of external citizens and potential voters
who could affect the stability of a new, rather small, Scotland. A
substantial overlap of citizenship between Scotland and rUK might be
thought of as interfering with the sovereignty of rUK. In addition,
there may be other pitfalls – especially from an rUK perspective –
if Scotland chooses to make a generous initial offer of citizenship
to its lawfully resident settled non-citizens from EU and third
countries, and this offer is widely taken up. The rUK may fear
deflection effects from such an offer, with new and unwanted
migration flows coming to rUK from Scotland in the form of new
Scottish citizens. In the end, Scotland may have to choose a
compromise between these various dimensions. It may be possible to
discern a principled stance which sees generous offers made on the
basis of both residence and descent, in both cases because Scotland
can make a case for needing more citizens, whilst at the same time
the same government tries to preserve the nestedness of Scotland and
its citizenship within the wider framework of these islands by trying
to push tolerance of dual citizenship on all sides. In the end,
though, one aspect may need to be traded against the others and –
given the increasing hostility to immigration in many parts of the UK
at present – one can easily imagine that it would be the open offer
to settled immigrants that would be the easiest element to sacrifice.

So,
Scottish by birth, descent or residence? Or British? Or both.
Perhaps. But in the event of a ‘yes’ vote, it may not even be
Edinburgh which decides our citizenship fate.